The great Senate fight: Vanished, without a trace

It is stunning, in a way, the degree to which the Great Senate Crisis has dropped off the edge of Planet Ottawa in the past month. For a year we spoke of little else. Now it’s just gone. There’s still NDP Leader Tom Mulcair, tilting desultorily at the odd windmill, insisting that, yes he can abolish the red chamber. But he doesn’t really believe it. The Tories and Liberals, meantime, avert their gaze, presumably based on the logic it’s best to avoid what you can’t fix.

Except, here’s the irony: They could fix it, in meaningful ways, if they chose to. The three major parties could do that tomorrow. But even the Grits, who got the ball rolling in January by liberating their senators, appear to have lost stomach for the fight. The Senate scandal sparked a drive for reform that briefly turned Ottawa inside out. Now, with the marvellous excuse of the Supreme Court serving as ballast, we’re back to status quo ante, or so it would seem.

It was a newspaper article by former provincial Liberal MPP Greg Sorbara, published a year ago, that first got Trudeau and his people thinking about reforms that could be effected without igniting a new constitutional round. At the height of the furor over the Wright-Duffy affair, Sorbara proposed in a Toronto Star op-ed that Prime Minister Stephen Harper could “give up the divine right of prime ministers to make Senate appointments and, more important, he could take steps to delink the Senate from the partisan structure that is the organizational basis of the House of Commons.”

Sorbara envisioned a 20-member appointments committee, made up of “respected members of the Order of Canada. It would be the responsibility of the Governor General, using a lens of diversity regarding the Order of Canada cohort, to populate the members of such a committee from time to time.” Existing senators would serve out their time. But as new vacancies appeared, the new system would take effect. Sorbara proposed a term limit of six years, renewable for another six.

Of course, much of the detail of his thinking was blown out of the water April 25, when the Supreme Court of Canada rendered its decision on what standards must be met, under the Constitution, for reform or abolition. Boiled down, the Supremes said nyet, nada, zilch: You can’t elect senators or impose term limits without approval from seven provinces comprising at least 50 per cent of the population, and you can’t abolish without unanimous provincial consent. Oh yes, and the PM’s right — we may as well call it a responsibility, now — to appoint senators is sacrosanct.

Harper immediately folded his tent, setting aside a founding purpose of the Reform Party as though it were yesterday’s leftovers. Mulcair growled it would be abolition or bust regardless, which is just another way of signalling real reform is out of reach. And the Trudeau Liberals indicated, initially at least, that they felt vindicated. Trudeau’s “liberating” of 32 Senate Liberals in January was not without its hitches — chief among them that senators in question did not want to be set free — but the basic frame of the Sorbara plan, formal non-partisanship, is in place in seed form, in one party. All that remains is to develop an appointments system that lifts partisan politics from the equation, and replaces it with merit.

Is such a thing even possible, given the SCC ruling? To a degree, no. The PM’s formal role can only be altered under the 7/50 provision. Any kind of formal arms-length selection process — say a multi-partisan Commons Senate appointments committee, charged with providing the PM with a list of gender-balanced names from across industry, the arts, commerce, academia and aboriginal Canada — would require changing the Constitution.

Except, possibly — and here’s where the choice to fight on, or not, comes in — if the process were to remain informal, and did not confer any structural obligation on future prime ministers. “An (appointments) committee might be possible if the PM retains final say,” University of Waterloo constitutional scholar Emmett Macfarlane wrote to me recently, “and doesn’t try to formalize it in a law in a way that binds future PMs to the process.”

So here’s how it could look, in theory: Realizing the status quo is unacceptable, and that reform through constitutional wrangling is undesirable, the PM could, first, follow the Liberal lead, and let his people go; and second, strike a committee of trusted voices, non-partisan or multi-partisan, to offer suggestions for filling the nine current vacancies — one for each of B.C. and Quebec, two for each of Manitoba and Nova Scotia, three for Ontario. In other words, he could apply Bismarck’s dictum that “politics is the art of the possible,” and do what he can, now.

The fact that he won’t, and that no one in his or any other party can even be bothered to ask him to, says volumes about the current state of play in Ottawa. And none of it is good.

I am a national political columnist for Postmedia News. My work appears in the National Post, on Canada.com, the Ottawa Citizen, Montreal Gazette, Calgary Herald, Edmonton Journal, Halifax Chronicle-Herald... read more and Vancouver Sun, among other publications. I write primarily about national politics and policy.View author's profile